GOVERNMENT'S PROPOSED JURY INSTRUCTION NO. 1
INTRODUCTION
Members of the Jury:
In any jury trial there are, in effect, two judges. I am one
of the judges; the other is the jury. It is my duty to preside
over the trial and to decide what evidence is proper for your
consideration. It is also my duty at the end of the trial to
explain to you the rules of law that you must follow and apply in
arriving at your verdict.
First, I will give you some general instructions which apply
in every case, for example, instructions about burden of proof
and how to judge the believability of witnesses. Then I will
give you some specific rules of law about this particular case,
and finally I will explain to you the procedures you should
follow in your deliberations.
Source: Pattern Jury Instructions (Criminal Cases), Fifth
Circuit, No. 1.04 (1990); Court's instructions in United
States v. John J. Johnson, No. CR-H-92-152 (S.D. Tex.).

GOVERNMENT'S PROPOSED JURY INSTRUCTION NO. 2
DUTY TO FOLLOW INSTRUCTIONS
You, as jurors, are the judges of the facts. But in
determining what actually happened -- that is, in reaching your
decision as to the facts -- it is your sworn duty to follow all
of the rules of law as I explain them to you.
You have no right to disregard or give special attention to
any one instruction, or to question the wisdom or correctness of
any rule I may state to you. You must not substitute or follow
your own notion or opinion as to what the law is or ought to be.
It is your duty to apply the law as I explain it to you,
regardless of the consequences.
It is also your duty to base your verdict solely upon the
evidence, without prejudice or sympathy. That was the promise
you made and the oath you took before being accepted by the
parties as jurors, and they have the right to expect nothing
less.
Source: Pattern Jury Instructions (Criminal Cases), Fifth
Circuit, No. 1.05 (1990); Court's instructions in United
States v. John J. Johnson, No. CR-H-92-152 (S.D. Tex.).

GOVERNMENT'S PROPOSED JURY INSTRUCTION NO. 3
PRESUMPTION OF INNOCENCE, BURDEN OF PROOF, REASONABLE DOUBT
The indictment or formal charge against a defendant is
not
evidence of guilt. Indeed, the defendant is presumed by the law
to be innocent. The law does not require a defendant to prove
his innocence or produce any evidence at all, [and no inference
whatever may be drawn from the election of a defendant not to
testify.] The government has the burden of proving the defendant
guilty beyond a reasonable doubt, and if it fails to do so, you
must acquit the defendant.
While the government's burden of proof is a strict or heavy
burden, it is not necessary that the defendant's guilt be proved
beyond all possible doubt. It is only required that the govern-
ment's proof exclude any "reasonable doubt" concerning the
defendant's guilt.
A "reasonable doubt" is a doubt based upon reason and common
sense after careful and impartial consideration of all the
evidence in the case. Proof beyond a reasonable doubt,
therefore, is proof of such a convincing character that you would
be willing to rely and act upon it without hesitation in the most
important of your own affairs. If you are convinced that the
accused has been proved guilty beyond reasonable doubt, say so.
If you are not convinced, say so.
Source: Pattern Jury Instructions (Criminal Cases), Fifth
Circuit, No. 1.06 (1990); Court's instructions in United
States v. John J. Johnson, No. CR-H-92-152 (S.D. Tex.).

GOVERNMENT'S PROPOSED JURY INSTRUCTION NO. 4
EVIDENCE -- EXCLUDING ARGUMENT OF COUNSEL AND COMMENT OF
COURT
As I told you earlier, it is your duty to determine the
facts. In doing so you must consider only the evidence presented
during the trial, including the sworn testimony of the witnesses
and the exhibits. Remember that any statements, objections or
arguments made by the lawyers are not evidence. The function of
the lawyers is to point out those things that are most
significant or most helpful to their side of the case, and in so
doing to call your attention to certain facts or inferences that
might otherwise escape your notice. In the final analysis,
however, it is your own recollection and interpretation of the
evidence that controls in the case. What the lawyers say is not
binding upon you.
Also, do not assume from anything I may have done or said
during the trial that I have any opinion concerning any of the
issues in this case. Except for the instructions to you on the
law, you should disregard anything I may have said during the
trial in arriving at your own findings as to the facts.
Source: Pattern Jury Instructions (Criminal Cases), Fifth
Circuit, No. 1.07 (1990); Court's instructions in United
States v. John J. Johnson, No. CR-H-92-152 (S.D. Tex.).

GOVERNMENT'S PROPOSED JURY INSTRUCTION NO. 5
EVIDENCE -- INFERENCES -- DIRECT AND CIRCUMSTANTIAL
While you should consider only the evidence, you are
permitted to draw such reasonable inferences from the testimony
and exhibits as you feel are justified in the light of common
experience. In other words, you may make deductions and reach
conclusions which reason and common sense lead you to draw from
the facts which have been established by the evidence.
Do not be concerned about whether evidence is "direct
evidence" or "circumstantial evidence". You should consider and
weigh all of the evidence that was presented to you.
Source: Pattern Jury Instructions (Criminal Cases), Fifth
Circuit, No. 1.08 (Alternative A) (1990); Court's instructions
in United States v. John J. Johnson, No. CR-H-92-152 (S.D. Tex.).

GOVERNMENT'S PROPOSED JURY INSTRUCTION NO. 6
ALL AVAILABLE EVIDENCE NEED NOT BE PRODUCED
The law does not require the prosecution to call as
witnesses all persons who may have been present at any time or
place involved in the case, or who may appear to have some
knowledge of the matters in issue at this trial. Nor does the
law require the prosecution to produce as exhibits all papers and
things mentioned in the evidence.
Source: 1 Devitt & Blackmar, Federal Jury Practice and
Instructions, § 17.18 (3d ed. 1977) (partial).

GOVERNMENT'S PROPOSED JURY INSTRUCTION NO. 8
AND/OR CAUTIONARY INSTRUCTION DURING TRIAL --
TRANSCRIPT OF TAPE RECORDED CONVERSATION
Exhibits have been identified as typewritten
transcripts of the oral conversations which can be heard on the
tape recordings received in evidence as Exhibits . The
transcripts also purport to identify the speakers engaged in such
conversations.
I have admitted the transcripts for the limited and
secondary purpose of aiding you in following the content of the
conversations as you listen to the tape recordings, and also to
aid you in identifying the speakers.
However, you are specifically instructed that whether the
transcripts correctly or incorrectly reflect the content of the
conversations or the identity of the speakers is entirely for you
to determine based upon your own evaluation of the testimony you
have heard concerning the preparation of the transcripts and from
your own examination of the transcripts in relation to your
hearing of the tape recordings themselves as the primary evidence
of their contents. If you should determine that the transcripts
are in any respect incorrect or unreliable, you should disregard
them to that extent.
Source: Pattern Jury Instructions (Criminal Cases), Fifth
Circuit, No. 1.40 (1990) (modified). Court's instructions in
United States v. John J. Johnson, No. CR-H-92-152 (S.D. Tex.).
Authorities: United States v. Chase, 838 F.2d 743, 748 (5th
Cir. 1988), cert. denied, 486 U.S. 1035 (1989); United States v.
Larson, 722 F.2d 139, 144 (5th Cir. 1983), cert. denied, 466
U.S. 987 (1984).

GOVERNMENT'S PROPOSED JURY INSTRUCTION NO. 9
CREDIBILITY OF WITNESSES
I remind you that it is your job to decide whether the
government has proved the guilt of the defendant beyond a
reasonable doubt. In doing so, you must consider all of the
evidence. This does not mean, however, that you must accept all
of the evidence as true or accurate.
You are the sole judges of the credibility or
"believability" of each witness and the weight to be given the
witness's testimony. An important part of your job will be
making judgments about the testimony of the witnesses [including
the defendant] who testified in this case. You should decide
whether you believe what each person had to say, and how
important that testimony was. In making that decision I suggest
that you ask yourself a few questions: Did the person impress
you as honest? Did the witness have any particular reason not to
tell the truth? Did the witness have a personal interest in the
outcome of the case? Did the witness have any relationship with
either the government or the defense? Did the witness seem to
have a good memory? Did the witness have the opportunity and
ability to understand the questions clearly and answer them
directly? Did the witness's testimony differ from the testimony
of other witnesses? These are a few of the considerations that
will help you determine the accuracy of what each witness said.
In making up your mind and reaching a verdict, do not make

any decisions simply because there were more witnesses on one
side than on the other. Do not reach a conclusion on a
particular point just because there were more witnesses
testifying for one side on that point. Your job is to think
about the testimony of each witness you have heard and decide how
much you believe of what each witness had to say.
Source: Pattern Jury Instructions (Criminal Cases), Fifth
Circuit, No. 1.09 (1990). Court's instructions in UnitedStates v. John J. Johnson, No. CR-H-92-152 (S.D. Tex.).

GOVERNMENT'S PROPOSED JURY INSTRUCTION NO. 10
CO-CONSPIRATOR -- PLEA AGREEMENT
You have heard evidence that Joseph M. Mobley and James
Maurice Johnson have entered into plea agreements with the
government. Their testimony was received in evidence and may be
considered by you. You may give their testimony such weight as
you think it deserves. Whether or not their testimony may have
been influenced by their plea agreements is for you to determine.
Their guilty pleas cannot, however, be considered by you as
evidence of this defendant's guilt. The guilty pleas can be
considered by you only for the purpose of determining how much,
if at all, to rely upon the testimony of these witnesses.
Source: Manual of Model Criminal Jury Instructions, Eighth
Circuit, No. 4.04 (1989) (modified). Court's instructions in
United States v. John J. Johnson, No. CR-H-92-152 (S.D. Tex.).

GOVERNMENT'S PROPOSED JURY INSTRUCTION NO. 11
UNINDICTED CO-CONSPIRATORS
The indictment refers to alleged co-conspirators and
corporate co-conspirators who were not included in the
indictment. You should not be concerned with or speculate about
why alleged co-conspirators have not been included.
Source: Sec. of Antitrust Law, American Bar Ass'n, Sample
Jury Instructions In Criminal Antitrust Cases, No. 18 (1984)
(modified). Court's instructions in United States v. John J.
Johnson, No. CR-H-92-152 (S.D. Tex.).

GOVERNMENT'S PROPOSED JURY INSTRUCTION NO. 12
CAUTION -- PUNISHMENT
If the defendant is found guilty, it will be my duty
to decide what the punishment will be. You should not be
concerned with punishment in any way. It should not enter your
consideration or discussions.
Source: Pattern Jury Instructions (Criminal Cases), Fifth
Circuit, No. 1.21 (1990). Court's instructions in United States
v. John J. Johnson, No. CR-H-92-152 (S.D. Tex.).

GOVERNMENT'S PROPOSED JURY INSTRUCTION NO. 13
SINGLE DEFENDANT - MULTIPLE COUNTS
A separate crime is charged in each count of the indictment.
Each count and the evidence pertaining to it should be considered
separately. The fact that you may find the defendant guilty or
not guilty as to one of the crimes charged should not control
your verdict as to any other.
Source: Pattern Jury Instructions (Criminal Cases), Fifth
Circuit, No. 1.22 (1990). Court's instructions in United
States v. John J. Johnson, No. CR-H-92-152 (S.D. Tex.).
Page 15.

GOVERNMENT'S PROPOSED JURY INSTRUCTION NO. 14
CORPORATION CAN ACT ONLY THROUGH AGENTS
As a general rule, whatever any person is legally capable
of doing himself can be done through another as agent. So, if
the acts of an employee or other agent are voluntarily and
intentionally ordered or directed, or authorized or consented to
by the accused, the law holds the accused responsible for such
acts, the same as if the acts had in fact been done by the
accused.
A corporation is in law a person, but, of course it cannot
act otherwise than through its directors, or officers, or
employees or other agents. The law, therefore, holds a
corporation criminally responsible for all unlawful acts of its
directors, or officers, or employees, or other agents, provided
such unlawful acts are done within the scope of their authority
and to benefit the corporation.
Authority to act for a corporation in a particular matter,
or in a particular way or manner, may be inferred from the
surrounding facts and circumstances shown by the evidence in the
case. That is to say, authority to act for a corporation, like
any other fact in issue in a criminal case, need not be
established by direct evidence, but may be established by
circumstantial evidence.
Source: Devitt, Blackmar, and O'Malley, Federal Jury
Practice and Instructions, § 51A.07 (1992 supp.). Court's
instructions in United States v. All Star, et al., Crim. No.
H-88-29 (S.D. Tex. 1990), aff'd, 962 F.2d 465 (5th Cir. 1992)
(modified). ABA, Sample Jury Instructions in Criminal Antitrust
Cases, No. 69 (1984) (modified).

GOVERNMENT'S PROPOSED JURY INSTRUCTION NO. 15
APPARENT AUTHORITY
In order for a corporation to be responsible for the acts
or statements of one of its agents, it is not necessary that the
corporation specifically authorize the agent to commit the act or
make the statement. Rather the corporation is legally bound by
the acts and statements of its agents done or made within their
apparent authority.
Apparent authority is the authority that outsiders could
reasonably assume that the agent would have, judging from his
position in the corporation, the responsibility previously
entrusted to him or his office, and the circumstances surrounding
the agent's past conduct. Thus, in order for a corporation to be
legally responsible for the acts or statements of its agent, you
must find that the agent was acting within his apparent
authority.
Source: ABA, Sample Jury Instructions in Criminal
Antitrust Cases, No. 69 (1984) (modified).

GOVERNMENT'S PROPOSED JURY INSTRUCTION NO. 16
CONSPIRACY
The existence of a conspiracy is an essential element
of the offenses charged in Counts I and III of the indictment and
must be proved by the government beyond a reasonable doubt. A
"conspiracy" is an agreement between two or more persons to join
together to accomplish some unlawful purpose. It is a kind of
"partnership in crime" in which each member becomes the agent of
every other member.
One may become a member of a conspiracy without full
knowledge of all of the details of the unlawful scheme or the
names and identities of all of the other alleged conspirators.
If a defendant understands the unlawful nature of a plan or
scheme and knowingly and intentionally joins in that plan or
scheme on one occasion, that is sufficient to convict him for
conspiracy even though the defendant had not participated before
and even though the defendant played only a minor part.
The government need not prove that conspirators entered
into any formal agreement; nor that they directly stated between
themselves all of the details of a scheme. Similarly, the
government need not prove that all the details of a scheme were
actually agreed upon or carried out. Nor must it prove that all
of the persons alleged to have been members of a conspiracy were
such, or that alleged conspirators actually succeeded in
accomplishing their unlawful objectives.

Mere presence at the scene of an event, or mere similarity
of conduct among various persons and the fact that they may have
associated with each other, and may have assembled together and
discussed common aims and interests, does not necessarily
establish proof of the existence of a conspiracy. Also, a person
who has no knowledge of a conspiracy, but who happens to act in a
way which advances some object or purpose of a conspiracy, does
not thereby become a conspirator.
Source: Pattern Jury Instructions (Criminal Cases), Fifth
Circuit, No. 2.21 (1990) (modified). Court's instruction in
United States v. All Star, et al., Crim. No. H-88-29 (S.D. Tex.
1990), aff'd, 962 F.2d 465 (5th Cir. 1992) (modified).

GOVERNMENT'S PROPOSED JURY INSTRUCTION NO. 17
COUNT I
OFFENSE CHARGED -- STATUTE DEFINING OFFENSE
Count I charges that beginning at least as early as
1985 and continuing until at least May 1990, the defendant
entered into and engaged in a combination and conspiracy to
suppress and eliminate competition by rigging bids for the award
and performance of contracts to supply wholesale grocery products
to certain school districts and other public entities in
southeastern Texas, in unreasonable restraint of interstate trade
and commerce in violation of Section I of the Sherman Antitrust
Act. Section 1 of the Sherman Antitrust Act, provides in part
that:
Every contract, combination . . . or
conspiracy, in restraint of trade . . .
among the several States . . . is declared
to be illegal. . . . Every person who
shall make any contract or engage in any .
. . conspiracy declared by sections 1-7 of
this title to be illegal shall be . . .
guilty of an offense against the laws of
the United States.
The term "person" includes not only every individual, but
also every corporation, partnership, or other association or
organization, of every kind and character.
Source: 15 U.S.C. Section 1; Devitt, Blackmar, and
O'Malley, Federal Jury Practice and Instructions, §§ 51A.01,
51A.02 and 51A.04 (1992 supp.). Court's instructions in United
States v. All Star, et al., Crim. No. H-88-29 (S.D. Tex.
1990), aff'd, 962 F.2d 465 (5th Cir. 1992) (modified); Court's
instructions in United States v. John J. Johnson, No.
CR-H-92-152 (S.D. Tex.)(modified).

GOVERNMENT'S PROPOSED JURY INSTRUCTION NO. 18
PURPOSE OF SHERMAN ANTITRUST ACT
The purpose of the Sherman Antitrust Act is to preserve or
advance our system of free, competitive enterprise, and to
encourage to the fullest extent practicable, free and open
competition in the market place; all to the end that the
consuming public may receive better goods and services at the
lowest obtainable cost.
So, any unreasonable interference, by contract or
combination or conspiracy, with the ordinary, usual and
freely-competitive pricing or distribution system of the open
market in interstate trade and commerce, constitutes an
unreasonable restraint of interstate trade, and is in itself
unlawful; and, if knowingly done, is a federal offense under the
Sherman Antitrust Act.
Source: Devitt, Blackmar and O'Malley, Federal Jury
Practice and Instructions, § 51A.03 (1992 supp.) (modified).
Court's instructions in United States v. John J. Johnson, No.
CR-H-92-152 (S.D. Tex.).

GOVERNMENT'S PROPOSED JURY INSTRUCTION NO. 19
ELEMENTS OF SHERMAN ACT OFFENSES
For you to find the defendant guilty of the crime charged
in Count I of the indictment, you must be convinced that the
government has proved each of the following beyond a reasonable
doubt:
First: That the conspiracy described was knowingly formed,
and was existing at or about the time alleged;
Second: That the defendant knowingly became a member of
the conspiracy; and
Third: That the conspiracy either affected interstate
commerce or occurred within the flow of interstate commerce.
Source: Devitt, Blackmar, and O'Malley, Federal Jury
Practice and Instruction, § 51A.15 (1992 supp.) (modified).
Court's instructions in United States v. John J. Johnson, No.
CR-H-92-152 (S.D. Tex.).

GOVERNMENT'S PROPOSED JURY INSTRUCTION NO. 20
SPECIFIC INTENT NEED NOT BE PROVED
To establish the required intent for Count I of the
Indictment the government must prove beyond a reasonable doubt
that the defendant knowingly did something which the law forbids.
In this case, that means that the government must prove beyond a
reasonable doubt that the defendant knowingly formed, joined or
participated in a combination or conspiracy to rig bids. Since a
combination or conspiracy to rig bids is unreasonable and illegal
as a matter of law, the government does not have to prove that
the defendants specifically intended to unreasonably restrain
trade or that such conduct is an unreasonable restraint of trade.
If you find beyond a reasonable doubt that the defendant agreed
to rig any of the bids alleged with one or more co-conspirators,
then you must find the defendant guilty on Count I.
Source: Court's instructions in United States v. All Star,
et al., Crim. No. H-88-29 (S.D. Tex. 1990), aff'd, 962 F.2d
465 (5th Cir. 1992) (modified); United States v. John J.
Johnson, No. CR-H-92-152 (S.D. Tex.); see also 2 Devitt and
Blackmar, Federal Jury Practice and Instructions, pp. 757-760
(Supp. 1988).

GOVERNMENT'S PROPOSED JURY INSTRUCTION NO. 21
MOTIVES PROMPTING CONSPIRACY IMMATERIAL
A conspiracy to rig bids in or affecting interstate trade
and commerce is unlawful, even though the conspiracy may be
formed or engaged in for what appear to the conspirators to be
laudable motives.
A bid-rigging conspiracy, such as the one charged in the
indictment, cannot therefore be justified under the law, even
though the conspiracy may have been formed, or engaged in, to
prevent or halt ruinous competition, or to eliminate the evils of
price cutting, or to give each competitor what the conspirators
think is his fair share of the market.
Source: Devitt, Blackmar and O'Malley, Federal Jury
Practice and Instructions, § 51A.18 (1992 supp.) (modified
for bid rigging). Court's instruction in United States v. All
Star et al., Crim. No. H-88-29 (S.D. Tex. 1990), aff'd, 962
F.2d 465 (5th Cir. 1992).
Page 24.

GOVERNMENT'S PROPOSED JURY INSTRUCTION NO. 22
INTERSTATE COMMERCE
An essential element of the offense charged in Count I and
prohibited by the Sherman Act is that the unreasonable restraint
must involve interstate commerce. The term "interstate commerce"
includes the movement of products or services across state lines,
or in the flow of interstate commerce, as well as entirely
intrastate transactions that substantially affect interstate
commerce.
To establish this element, it is sufficient for the
government to demonstrate a substantial effect on interstate
commerce generated by the conspirators' general business
activities. The government need not show that the conspiracy
itself actually had an effect on interstate commerce, although
such proof would also be sufficient to establish this element.
The amount, quantity, or value of interstate commerce
involved or affected is unimportant, so long as you find that the
restraint charged in the indictment or the general business
activities of the defendant related to the conspiracy had some
effect upon interstate commerce.
Source: Court's instruction in United States v. All Star,
et al., Crim. No. H-88-29 (S.D. Tex. 1990), aff'd, 962 F.2d
465 (5th Cir. 1992) (modified); United States v. John J.
Johnson, No. CR-H-92-152 (S.D. Tex.)(modified).
Authorities: McLain v. Real Estate Board of New Orleans,Inc., 444 U.S. 232 (1980); United States v. Young Brothers, Inc.,
728 F.2d 682 (5th Cir. 1984), cert. denied, 469 U.S. 881 (1985);
United States v. Cargo Service Stations, Inc., 657 F.2d 676,
679-680 (5th Cir. 1981), cert. denied, 455 U.S. 1017 (1982).
Page 25.

GOVERNMENT'S PROPOSED JURY INSTRUCTION NO. 23
IGNORANCE OF ANTITRUST LAWS NO DEFENSE
It is not necessary for the prosecution to prove knowledge
of the accused that a particular act or failure to act is a
violation of law.
Thus, if the jury should find beyond a reasonable doubt
from the evidence in the case that the conspiracy charged in
Count I of the indictment was knowingly formed, and that the
defendant knowingly became a member of the conspiracy as charged,
then even if the defendant may have believed in good faith that
what was being done was not unlawful, it would not be a defense.
Source: Devitt, Blackmar and O'Malley, Federal JuryPractice and Instructions, § 51A.17 (1992 supp.)(modified).
Court's instruction in United States v. All Star, et al., Crim.
No. H-88-29 (S.D. Tex. 1990), aff'd, 962 F.2d 465 (5th Cir.
1992) (modified).
Page 26.

GOVERNMENT'S PROPOSED JURY INSTRUCTION NO. 24
BID-RIGGING PER SE UNREASONABLE
Bid rigging is an agreement between two or more persons to
eliminate, reduce, or interfere with competition for a job or
contract that is to be awarded on the basis of bids. Bid rigging
may be an agreement among competitors about the prices to be bid,
who should be the successful bidder, who should bid high, who
should bid low, or who should refrain from bidding; or any other
agreement with respect to bidding that affects, limits, or avoids
competition among them.
Every conspiracy to rig bids is unlawful, regardless of the
motives of the parties or any economic justification. This is
because the aim and result of every bid-rigging agreement, if
successful, is the elimination of one form of competition.
If there was a conspiracy as charged in Count I, it does
not matter whether the prices paid to the defendants and
co-conspirators were reasonable or unreasonable; high or low;
fair or unfair. The Sherman Act makes illegal every conspiracy
formed for the purpose of rigging bids. In this case, if you
find beyond a reasonable doubt that the defendant was a member of
a conspiracy to rig bids as alleged in Count I of the indictment,
then you need not decide whether such conspiracy was reasonable
or unreasonable because, as I have just explained, an agreement
among competitors not to compete for contracts by submitting
collusive bids is per se unreasonable and a violation of the

GOVERNMENT'S PROPOSED JURY INSTRUCTION NO. 25
PROOF OF OVERT ACT UNNECESSARY
FOR SHERMAN ACT VIOLATION
In order to find that any of the defendants here was a
party to the conspiracy charged in Count I of the indictment, it
is not necessary that the evidence show that the defendant
actually took any action to further or accomplish any object or
purpose of the alleged conspiracy or that the defendant actually
bid in accordance with the prices that may have been agreed upon
or arranged.
What the law condemns is the agreement or understanding
itself. In other words, the mere agreement or understanding,
whether formal, informal, or tacit, to do one or more of the
things charged in the indictment constitutes the offense. It is
wholly immaterial in order to prove a violation of the Sherman
Act whether the alleged conspiracy was ever actually carried out
or whether its purpose was ever accomplished.
Source: 2 Devitt and Blackmar, Federal Jury Practice and
Instructions, § 55.23 (3d ed. 1977) (adapted).
Authorities: Proof of overt act not necessary for Sherman
Act violation: United States v. Socony-Vacuum Oil Co., 310 U.S.
150, 224, n.59 (1940); United States v. Trenton Potteries Co.,
273 U.S. 392, 402 (1927); United States v. Flom, 558 F.2d 1179,
1183 (5th Cir. 1977).

GOVERNMENT'S PROPOSED JURY INSTRUCTION NO. 26
COUNT II
OFFENSE CHARGED -- STATUTE DEFINING OFFENSE
Count II of the indictment charges that on or about August
15, 1989, in the Southern District of Texas, the defendant
knowingly and willfully made and caused to be made certain false
writings and documents, knowing the same to contain false,
fictitious and fraudulent statements and entries as to material
facts, in matters within the jurisdiction of the Veterans
Administration, an agency of the United States of America.
Title 18 United States Code Section 1001 provides in part,
that:
Whoever, in any matter within the
jurisdiction of any department or
agency of the United States . . .
makes any false, fictitious or
fraudulent statements or
representations . . .
shall be guilty of an offense against the United States.
Source: 18 U.S.C. § 1001; 2 Devitt, Blackmar and O'Malley,
Federal Jury Practice and Instructions, §§ 37.05-37.06 (4th ed.
1990) (modified). Court's instructions in United States v. John
J. Johnson, No. CR-H-92-152 (S.D. Tex.).

GOVERNMENT'S PROPOSED JURY INSTRUCTION NO. 27
COUNT II
ELEMENTS OF THE OFFENSE
For you to find the defendant guilty of the crime charged
in Count II of the indictment, you must be convinced that the
government has proved each of the following beyond a reasonable
doubt:
First: that the defendant made a false statement to the
Veterans Administration;
Second: that the defendant made the statement
intentionally, knowing that it was false; and
Third: that the defendant made the false statement for the
purpose of misleading the Veterans Administration.
It is not necessary to show that the Veterans
Administration was in fact misled.
If you find that the government has proved these things,
you do not need to consider whether the false statement was
material, even though the language is used in the indictment.
this is not a question for the jury to decide.
Source: Pattern Jury Instructions (Criminal Cases), Fifth
Circuit, No. 2.46 (1990) (modified). Court's instructions in
United States v. John J. Johnson, No. CR-H-92-152 (S.D. Tex.).

GOVERNMENT'S PROPOSED JURY INSTRUCTION NO. 28
ON OR ABOUT
You will note that Count II of the indictment charges
that the offense was committed on or about August 15, 1989. The
government does not have to prove that the crime was committed on
that exact date, so long as the government proves beyond a
reasonable doubt that the defendant committed the crime on a date
reasonably near August 15, 1989, the date stated in the
indictment.
Source: Pattern Jury Instructions (Criminal Cases),
Circuit, No. 1.19 (1990). Court's instructions in UnitedStates v. John J. Johnson, No. CR-H-92-152 (S.D. Tex.).

GOVERNMENT'S PROPOSED JURY INSTRUCTION NO. 29
COUNT III
NATURE OF OFFENSE - STATUTE DEFINING OFFENSE
Count III of the indictment charges that beginning at least
as early as 1985 and continuing until at least as late as May
1990, in the Southern District of Texas, the defendant and
co-conspirators did knowingly and willfully conspire, combine and
agree with each other to commit offenses against the United
States, that is, to use and cause to be used the United States
mails in furtherance and execution of a scheme and artifice to
defraud public school districts in southeastern Texas of money
and property by means of false and fraudulent representations, in
violation of 18 U.S.C. § 1341.
Title 18 United States Code Section 371 provides in part,
that:
If two or more persons conspire . . .
to commit any offense against the
United States, . . . and one or more
of such persons do any act to affect
the object of the conspiracy . . ..
an offense against the United States has been committed.
Source: 18 U.S.C. § 371; 2 Devitt, Blackmar and O'Malley,
Federal Jury Practice and Instructions, §§ 28.01-28.02 (4th ed.
1990) (modified). Court's instructions in United States v. John
J. Johnson, No. CR-H-92-152 (S.D. Tex.).

GOVERNMENT'S PROPOSED JURY INSTRUCTION NO. 30
COUNT III ELEMENTS OF THE OFFENSE
The conspiracy charged in Count III of this indictment
is a separate and different offense from the conspiracy charged
in Count I. Furthermore, the elements of a conspiracy to commit
mail fraud are different from those of a conspiracy to violate
the Sherman Act.
For you to find the defendant guilty of this crime, you
must be convinced that the government has proved each of the
following beyond a reasonable doubt:
First: That two or more persons made an agreement to
commit the crime of mail fraud as charged in Count III of the
indictment;
Second: That the defendant knew the unlawful purpose of
the agreement and joined in it willfully, that is, with the
intent to further the unlawful purpose; and
Third: That one of the conspirators during the existence
of the conspiracy knowingly committed at least one of the overt
acts described in the indictment, in order to accomplish some
object or purpose of the conspiracy.
This last element is not an element of the conspiracy
charged in Count I. In other words, the government must show an
overt act in furtherance of the conspiracy only to prove the
conspiracy to commit mail fraud, not to prove the Sherman Act
conspiracy.

The term "overt act" means some type of outward, objective
action performed by one of the parties to or one of the members
of the agreement or conspiracy which evidences that agreement.
Although you must unanimously agree that the same overt act
was committed, the government is not required to prove more than
one of the overt acts charged.
The overt acts may, but for the alleged illegal agreement,
appear totally innocent and legal.
Source: Pattern Jury Instructions (Criminal Cases), Fifth
Circuit, No. 2.21 (1990) (modified); 2 Devitt, Blackmar and
O'Malley, Federal Jury Practice And Instructions, § 28.07 (4th
ed. 1990) (modified). Court's instructions in United
States v. John J. Johnson, No. CR-H-92-152 (S.D. Tex.).

GOVERNMENT'S PROPOSED JURY INSTRUCTION NO. 31
COUNT III
CONSPIRACY: SUBSTANTIVE OFFENSE: ELEMENTS
To assist you in determining whether there was an agreement
or understanding to commit mail fraud you are advised that the
elements of mail fraud are:
First: That the defendant knowingly participated with his
co-conspirators in creating a scheme to defraud public school
districts in Southeastern Texas of money and property by means of
false and fraudulent representations, as charged in Count III of
the indictment;
Second: That the defendant acted with a specific intent to
commit fraud;
Third: That the defendant mailed something or caused
another person to mail something for the purpose of carrying out
the scheme.
A "scheme to defraud" includes any scheme to deprive
another of money or property by means of false or fraudulent
pretenses, representations, or promises.
A representation may be "false" when it constitutes a half
truth, or effectively conceals a material fact, provided it is
made with intent to defraud.
It is not necessary that the government prove all of the
details alleged in the indictment concerning the precise nature
and purpose of the scheme, or that the material mailed was false

or fraudulent, or that the alleged scheme actually succeeded in
defrauding anyone, or that the use of the mails was intended as
the specific or exclusive means of accomplishing the alleged
fraud.
To "cause" the mails to be used is to do an act with
knowledge that the use of the mails will follow in the ordinary
course of business or where such use can reasonably be foreseen.
Keep in mind that Count III of the indictment charges a
conspiracy to commit mail fraud and not that mail fraud was
committed. In a conspiracy to commit mail fraud the government
does not need to prove an actual mailing, or that the defendant
was actually involved in the mailings directly. Rather, the
government must prove that the scheme to defraud reasonably
contemplated the use of the mail or that the use of the mail was
reasonably foreseeable or that the conspirators intended that the
mails be used in furtherance of the scheme.
Source: Pattern Jury Instructions (Criminal Cases), Fifth
Circuit, No. 2.54 (1990) (modified); Manual of Model Criminal
Jury Instructions, Eighth Circuit, No. 5.06C (1989)
(modified); Court's instructions in United States v. John J.
Johnson, No. CR-H-92-152 (S.D. Tex.).
.
Authority: United States v. Maze, 414 U.S. 395, 399 (1974);
United States v. Massey, 827 F.2d 995 (5th Cir. 1987); United
States v. Green, 964 F.2d 365 (5th Cir. 1992).
GOVERNMENT'S PROPOSED JURY INSTRUCTION NO. 32 INTENT TO DEFRAUD

Count III requires the government to prove beyond a
reasonable doubt that the defendant acted with a specific intent
to commit fraud. To act with an "intent to defraud" means to act
knowingly and with the intention or the purpose to deceive or to
cheat.
An intent to defraud is accompanied, ordinarily, by a
desire or a purpose to bring about some gain or benefit to
oneself or some other person or by a desire or a purpose to cause
some loss to some person.
Source: 2 Devitt, Blackmar and O'Malley, Federal Jury
Practice and Instructions, § 40.14 (4th ed. 1990); Court's
instructions in United States v. John J. Johnson, No. CR-H-92-152
(S.D. Tex.).

GOVERNMENT'S PROPOSED JURY INSTRUCTION NO. 33
PROOF OF INTENT
Intent ordinarily may not be proved directly, because
there is no way of fathoming or scrutinizing the operations of
the human mind. But you may infer the defendant's intent from
the surrounding circumstances. You may consider any statement
made and done or omitted by the defendant, and all other facts
and circumstances in evidence which indicate his state of mind.
You may consider it reasonable to draw the inference and
find that a person intends the natural and probable consequences
of acts knowingly and willfully done. As I have said, it is
entirely up to you to decide what facts to find from the
evidence.
But note, the standard of intent is different for Count I
than it is for Count III.
Source: 1 Devitt and Blackmar, Federal Jury Practice and
Instructions, § 14.13 (3d ed. 1977) (modified). Court's
instructions in United States v. John J. Johnson, No. CR-H-92-152
(S.D. Tex.)(modified).

GOVERNMENT'S PROPOSED JURY INSTRUCTION NO. 34
PERIOD OF THE CONSPIRACY
The evidence in the case need not establish the exact time
during which the alleged conspiracies existed. It is sufficient
if the evidence in the case shows beyond a reasonable doubt that
the offenses charged in Counts I and III existed on dates, or
during times, reasonably near the dates, or times, alleged in the
indictment.
Source: 2 Devitt and Blackmar, Federal Jury Practice and
Instructions, § 55.02 (3d ed. 1977) (partial). Court's
instructions in United States v. John J. Johnson, No. CR-H-92-152
(S.D. Tex.).

GOVERNMENT'S PROPOSED JURY INSTRUCTION NO. 35
JURISDICTION AND VENUE
Before you can find the defendant guilty of committing the
crimes charged in either Count I or Count III of the Indictment,
you must find beyond reasonable doubt that within the five-year
period immediately preceding March 21, 1994, some means, methods
or practices were employed by or under the authority of the
members of each of the alleged conspiracies within the Southern
District of Texas.
This district includes Austin, Brazos, Colorado, Fayette,
Fort Bend, Grimes, Harris, Madison, Montgomery, San Jacinto,
Walker, Waller, and Wharton Counties.
Source: 2 Devitt and Blackmar, Federal Jury Practice and
Instructions, § 55.25 (3d ed. 1977) (modified). Court's
instructions in United States v. John J. Johnson, No. CR-H-92-152
(S.D. Tex.)(modified).

GOVERNMENT'S PROPOSED JURY INSTRUCTION NO. 36
KNOWINGLY AND WILLFULLY
The word "knowingly," as that term has been used from time
to time in these instructions, means that the act was done
voluntarily and intentionally and not because of mistake or
accident.
The word "willfully" as that term has been used from time
to time in these instructions, means that the act was committed
voluntarily and purposely, with the specific intent to do
something the law forbids.
Source: Pattern Jury Instructions (Criminal Cases), Fifth
Circuit, No. 1.35 (1990) (modified). Court's instruction in
United States v. All Star, et al., Crim. No. H-88-29 (S.D. Tex.
1990), aff'd, 962 F.2d 465 (5th Cir. 1992); United States v.
John J. Johnson, No. CR-H-92-152 (S.D. Tex.).

GOVERNMENT'S PROPOSED JURY INSTRUCTION NO. 37
DUTY TO DELIBERATE - VERDICT FORM
To reach a verdict, all of you must agree. Your verdict
must be unanimous on each count of the indictment. Your
deliberations will be secret. You will never have to explain
your verdict to anyone.
It is your duty as jurors, to consult with one another, and
to deliberate in an effort to reach agreement if you can do so.
Each of you must decide the case for yourself, but only after an
impartial consideration of the evidence in the case with your
fellow jurors. During your deliberations, do not hesitate to
re-examine your own views and change your opinion if convinced
that you were wrong. But do not give up your honest beliefs as
to the weight or effect of the evidence solely because of the
opinion of your fellow jurors, or for the mere purpose of
returning a verdict.
Remember at all times, you are judges -- judges of the
facts. Your sole interest is to seek the truth from the evidence
in the case, to decide whether the government has proved the
defendant guilty beyond a reasonable doubt.
When you go to the jury room, the first thing that you
should do is select one of your number as your foreperson, who
will help to guide your deliberations and will speak for you here
in the courtroom.
A form of verdict has been prepared for your convenience.

[Explain Verdict Form]
The foreperson will write the unanimous answer of the jury
in the space provided for in each count of the indictment, either
guilty or not guilty. At the conclusion of your deliberations,
the foreperson should date and sign the verdict.
If you need to communicate with me during your
deliberations, the foreperson should write the message and give
it to the marshal. I will either reply in writing or bring you
back into the courtroom to answer your message.
Bear in mind that you are never to reveal to any person,
not even to the court, how the jury stands, numerically or
otherwise, on any count of the indictment, until after you have
reached a unanimous verdict.
Source: Pattern Jury Instructions (Criminal Cases), Fifth
Circuit, No. 1.25 (1990). Court's instructions in UnitedStates v. John J. Johnson, No. CR-H-92-152 (S.D. Tex.).
The foregoing jury instructions were given to the jury
on
this day of 1994.
HONORABLE DAVID HITTNER
United States District Judge

Page 44

CERTIFICATE OF SERVICE
This is to certify that true and correct copy of the
foregoing Government's Proposed Jury Instructions has been
served upon Joel M. Androphy, Esq. and was sent via Certified
Mail-Return Receipt Requested this day of April, 1994, to:
Joel M. Androphy, Esq.
Berg & Androphy
3704 Travis Street
Houston, Texas 77002
"/s/"
JANE E. PHILLIPS
Attorney